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The Roe v. Wade decision (1973) is a textbook case showing how previous, unrelated cases can be twisted and molded into something never intended by those involved in those previous cases. Based on the notion that today's case is "sort of like" the previous cases with little legal basis for reaching that conclusion.
Prior cases: Griswold v. Connecticut
In the late 1800s the Fed govt passed "Comstock Laws" prohibiting pornography, contraceptives etc. from being sent through the U.S. mail. Many states also passed such laws. A number of them were later repealed or struck down, but there were still a few in effect in Connecticut in the 1950s, which also prohibited using devices or materials to prevent conception. Estelle Griswold, a director of a local Planned Parenthood clinic, was arrested and found guilty of violating this law.
Court after court affirmed the conviction. But when it got to the Supreme Court in 1965, the justices complained that this law hit poor people harder than wealthier people, and invented a brand-new "Right to Marital Privacy" supposedly protected by the Constitution. Never mind that the Const never mentioned such privacy or even "marital privacy". To get around this lack, the justices then announced that "penumbras and emanations" of other parts of the document could be construed as creating this new "right". Basically the majority ruled, not on the idea that the Constitution prevented the state from enacting this "Comstock Law", but on the idea that it would be nice if it did.
So after the Griswold decision, we suddenly had a "Right to marital privacy" that had never been found in the Constitution before. By sufficient twisting and pseudo-interpreting of a few parts of the Constitution, suddenly the new "right" appeared from otherwise-thin air.
Roe v. Wade
Fast forward to 1969. Texas resident Norma McCorvey (pseudonym Jane Roe) became pregnant with her third child, and wanted an abortion. She announced she had been raped, thinking it would allow her under Texas law to get rid of the baby, only to find that Texas permitted abortion only to protect the life or health of the mother. She dropped the rape story and sued, claiming the Texas abortion law was somehow unconstitutional.
The case reached the Supreme Court, which in 1973 decided she was right. The "right to privacy" that had been invented from thin air in the Griswold case and applied simply to contraceptives, now blossomed into the right to kill the baby itself developing in the womb. To get around universally-held murder laws, the case decided that the baby was not a person, or even human, but was simply a bit of disorganized tissue that might someday become human. And the mother could legally get rid of it, as easily as she could remove a wart.
The court also invented a complex scheme enacting three different levels of "protection" based on which trimester the baby was in, and declared it to be law... despite the fact that the Constitution never made the slightest mention of any such scheme, nor gave the Supreme Court any power to enact one - a job reserved only to Congress.
So was the "right" to use contraception - found nowhere in the Constitution - created from thin air. And in less than a decade extended grotesquely, to permit the wholesale legal killing of children growing in the womb. Along with several new "laws" never passed or even debated by Congress, but imposed by a Court with no legislative power - an act politely known as "judicial activism" or "legislating from the bench".
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Even today, is it possible to find ANY of the people involved in the Comstock laws - or in the Griswold case - who can say with a straight face that they intended their laws and judicial cases to permit the wholesale killing of children in the womb, after debasing them to the status of "Not children", "Not human", and only fit for flushing down the nearest toilet?
We may see USSC nominee Amy Coney Barrett point out the new laws "enacted" by the Supreme Court that had no power to create them. While a valid complaint, it barely scrapes the surface of the huge change in American jurisprudence... and inhuman behavior it has come to permit, merely by judicial fiat.
The Court has ever right to reverse Roe v Wade and bad precedent. As you explained it has no constitutional basis. I don't support abortion, but don't want it banned. It should be decided by the legislators. I doubt Congress could pass legalizing abortion, but many state legislators could.
The Court has ever right to reverse Roe v Wade and bad precedent. As you explained it has no constitutional basis.
It should be decided by the legislators. I doubt Congress could pass legalizing abortion, but many state legislators could.
If Roe v. Wade does get struck down, then there would still be lots of laws permitting abortion. They would vary by state.
Quote:
Originally Posted by mtl1
I don't support abortion, but don't want it banned.
I'm sure she'll be asked but she should stick with what she said previously, that she will follow the law and that she has not already made up her mind regarding any particular cases. It always annoys me at the hearings when senators try to press the nominee on how s/he will find regarding X issue or Y issue. If the candidate is qualified s/he will know that one of the most important qualifications for a justice is that the nominee be as unbiased as possible. If a nominee comes to a judicial role having his/her mind already made up on an issue, then in my mind that nominee should not be confirmed. For that reason it is perfectly appropriate to question someone about bias. But they shouldn't ask her to commit to ruling one way or the other - although I fully expect them to do that.
Democrats frequently shout about "Long standing precedent being upset" and "standing law".
Are they aware that laws about abortion had been "settled law" for hundreds of years in this country before Roe v. Wade showed up and upset them all?
Does this mean that Democrats who are worried about "Long standing laws being upset", will want Roe v. Wade struck down so that the much-longer-term "standing law" that existed before it, can be restored?
BTW, if the Roe verdict turns out to be a flagrant violation of the U.S. Constitution with no legal justification, doesn't the Supreme Court have a DUTY to strike it down as soon as a suitable case is brought? What is the Supreme Court's fundamental purpose, if not to uphold and enforce the U.S. Constitution above all else?
The same can be asked about Griswold v. Connecticut.
BTW, if the Roe verdict turns out to be a flagrant violation of the U.S. Constitution with no legal justification, doesn't the Supreme Court have a DUTY to strike it down as soon as a suitable case is brought? What is the Supreme Court's fundamental purpose, if not to uphold and enforce the U.S. Constitution above all else?
The same can be asked about Griswold v. Connecticut.
I think there has to be a lawsuit challenging the law. But I agree the Court should overturn all "precedent" that the Constitution doesn't require and allow the legislators to decide what the law should be.
I think there has to be a lawsuit challenging the law. But I agree the Court should overturn all "precedent" that the Constitution doesn't require and allow the legislators to decide what the law should be.
Why I wrote "as soon as a suitable case is brought" in the OP.
If Roe v. Wade does get struck down, then there would still be lots of laws permitting abortion. They would vary by state.
Ditto.
This is the way it should be. Abortion is a civil matter that is a state issue. The same really is true of marijuana law, homosexual marriage and a host of other hot button issues. I cannot fathom how they twisted the equal protection clause to mean a woman has a right to abort a baby or a homosexual (or anyone for that matter) has a right to marriage. These things are state issues. The 10th amendment gives states the power to make most of their own laws. Marriage, abortion are both clear cases where the state should make the decision. Drugs?? It should only be a federal issue when state lines are crossed.
Our founding fathers intended the country would be different from one region to another. It was designed to respect regional differences, therefore allowing our union to persist without conflict. We have ignored that and we now race towards terrible conflict.
The Senate Judiciary Committee will hear opening statements today regarding Judge Amy Coney Barrett’s nomination to the Supreme Court. Judge Barrett will be introduced by U.S. Senator Todd Young, Indiana; U.S. Senator Michael Braun, Indiana; and Professor Patricia O’Hara from Notre Dame Law School.
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Senate Judiciary Committee Hearing – SCOTUS Nominee Judge Amy Coney Barrett
